Monson v. Madison Family Institute

Decision Date15 March 1990
Docket NumberNo. 89-0314,89-0314
Citation458 N.W.2d 388,156 Wis.2d 465
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Larry W. MONSON, Stephanie L. Monson and Mary E. Monson, Plaintiffs-Appellants, v. MADISON FAMILY INSTITUTE and St. Paul Fire and Marine Insurance Company, Frank Coogan, Molly Allison, Joyce Nourse, and Dr. Stanley Miezio, Defendants-Respondents.
CourtWisconsin Court of Appeals

Appeal from a judgment of the circuit court for Dane county: MICHAEL N. NOWAKOWSKI, Judge.

Circuit Court, Dane County.


Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Larry Monson and his daughters, Stephanie and Mary, appeal from a judgment dismissing their complaint. The issues are whether the court abused its discretion in dismissing the complaint for failure to prosecute and in imputing counsel's neglectful conduct to the Monsons. We conclude the court did not abuse its discretion, and we affirm.

The court also granted defendants' motions for summary judgment. We vacate the summary judgment because the dismissal for failure to prosecute completely disposes of the matter. Sec. 805.03, Stats. (3333333333)


On March 25, 1987, the Monsons began this action against Madison Family Institute and St. Paul Fire and Marine Insurance Company. The complaint alleged several claims stemming from treatment Stephanie and Mary Monson had received at the institute.

On May 6, 1987, defendants moved to dismiss the complaint for failure to state a claim. The court established a briefing schedule and set the motion for hearing for October 2, 1987. On September 15, 1987, the Monsons' attorney moved to stay consideration of the motion because his investigation had uncovered new evidence which required amending the pleadings. In the motion, the attorney stated that he would file the amended pleadings by September 25, 1987. The pleadings were not amended by then and, at the scheduled motion hearing, the court agreed to hold the motion to dismiss in abeyance to permit the Monsons to file an amended complaint by October 23, 1987.

The trial court issued a preliminary scheduling order on October 5, 1987, setting a pretrial date of January 13, 1988. The order also required any new parties to be joined within sixty days. On December 4, 1987, the Monsons' attorney moved to amend the preliminary scheduling order, arguing that he needed more time to amend the pleadings or add new parties because of additional newly discovered evidence.

The pretrial was held on January 13, 1988. The Monsons' attorney submitted no pretrial statement. A jury trial was set for June 1988, and the Monsons were given until January 29, 1988 to amend their pleadings and include any new parties.

The Monsons' attorney filed amended pleadings adding Dr. Stanley Miezio as a defendant twenty days late. A hearing on defendants' earlier motion to dismiss was held on April 29, 1988. Although filed in advance of the hearing, the Monsons' brief was late. At this hearing, defendants discovered that Miezio had only recently been served, although he had been joined on February 19, 1988. The attorney gave no explanation for not serving Miezio sooner.

As a result of the delay in serving Miezio, the June trial was postponed. A status conference was set for May 16, 1988. The Monsons' attorney was responsible for notifying Miezio's counsel of the conference date but failed to do so. On June 15, 1988, a hearing was held on Meizio's motion to dismiss the claims because they were time barred. The hearing resulted in an order requiring the Monsons to amend their pleadings a second time by July 1, 1988.

On October 5, 1988, Meizio moved to dismiss for failure to prosecute based on the Monsons' failure to amend their pleadings by July 1 and their failure to respond to his May 4, 1988 request for documents. The Monsons' attorney made no response to this motion and filed no counter affidavits to defendants' motions for summary judgment.

On December 14, 1988, the trial court granted the defendants' motion to dismiss for failure to prosecute and for summary judgment. The court found that the Monsons' attorney's conduct supported a dismissal for failure to prosecute, noting that he had initiated no discovery and had not responded to Meizio's discovery request. The court also questioned the attorney's claim of a year-long investigation of the case, noting that, while the legal theories were novel and complicated, the facts giving rise to the claims were not.


A motion to dismiss a complaint for failure to prosecute is addressed to the sound discretion of the trial court. Prahl v. Brosamle, 142 Wis.2d 658, 666, 420 N.W.2d 372, 376 (Ct.App.1987); sec. 805.03, Stats. We will affirm a discretionary determination if the court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion. Id.

Because dismissal is a drastic sanction, a court should dismiss a case only on finding egregious conduct and bad faith. Trispel v. Haefer, 89 Wis.2d 725, 732-33, 279 N.W.2d 242, 245 (1979). The party claiming an abuse of discretion must demonstrate "a clear and justifiable excuse" for the delay. 2 Id. at 733, 279 N.W.2d at 245.

The Monsons contend that the trial court abused its discretion in dismissing their complaint because it made no finding that their attorney acted egregiously or in bad faith. We see no abuse of discretion here. Nowhere in their brief have the Monsons or their attorney demonstrated a clear and justifiable excuse for the delay.

Moreover, before dismissing the action, the court reviewed the record in detail regarding the attorney's conduct. The attorney had failed to comply with court orders in a timely manner, to respond to a defendant's discovery request, and to initiate any discovery of his own. His conduct had so delayed the litigation that defendants' interests were prejudiced and the court's goal of efficient judicial administration "significantly frustrated." In the months between the filing of the motions for dismissal and summary judgment and the motion hearing, the attorney had failed to move the case "one stitch further." He had not responded to the motion to dismiss nor filed any counter affidavits to oppose the motion for summary judgment. The court concluded that the attorney had "significantly fail[ed]" to pursue the case.

While the court never used the words "egregious" or "bad faith," it found that the attorney's conduct warranted a dismissal and implicitly found that his conduct was egregious and in bad faith. In Englewood Apartments Partnership v. Grant & Co., 119 Wis.2d 34, 39 n. 3, 349 N.W.2d 716, 719 (Ct.App.1984), we said that the failure to utter those precise "magic words" does not result in reversible error when the trial court has made "unmistakable but implicit findings to the same effect." We conclude that the court has done so here.


A court may impute an attorney's neglectful conduct to the client. Charolais Breeding Ranches v. Wiegel, 92 Wis.2d 498, 514, 285 N.W.2d 720, 727-28 (1979). An attorney's conduct may constitute excusable neglect on the client's part "when the client has acted as a reasonable and prudent person in engaging a lawyer of good reputation, has relied upon him to protect his rights, and has made reasonable inquiry concerning the proceedings." Id. at 514, 285 N.W.2d at 728. The court may, however, impute the attorney's conduct to the client even when the client is not at fault. In each case, the trial court must exercise its discretion "to secure substantial justice between the parties." Paschong v. Hollenbeck, 13 Wis.2d 415, 424, 108 N.W.2d 668, 673 (1961). Depending on the facts of the case, the court may or may not impute the conduct to the client. See e.g., Wagner v. Springaire Corp., 50 Wis.2d 212, 221-223, 184 N.W.2d 88, 93 (1971) (attorney's neglectful conduct imputed to defendant because otherwise unfairness would result to plaintiffs, who diligently pursued their causes of action).

The Monsons contend that, even if their attorney's neglect is not excusable, the court abused its discretion in imputing his neglect to them. We disagree.

In dismissing the complaint, the court balanced the Monsons' interest in going forward with their case against the defendants' interest in a timely resolution of the litigation. The court also considered its interest "in making sure that the Court's business is dealt with expeditiously and that the litigants ... have their day in court at the earliest possible time." The court concluded:

In balancing all of these things together, it is my view that there has been such a significant failure on the part of [the Monsons' attorney] to pursue this case that dismissal is the appropriate remedy even though his own client is not the one that is at fault in causing the failure to prosecute.

The Monsons have not shown that the trial court abused its discretion in imputing their attorney's conduct to them. The court properly exercised its discretion by considering the interests of the parties and of the court itself. The court determined that the earliest the case could come to trial was the summer of 1989 and that the delay would prejudice defendants' interests. The case had been pending for twenty-three months, and during that time very little progress had been made. Under these circumstances, the decision to impute their attorney's actions to the Monsons and to dismiss for failure to prosecute was reasonable.

By the Court.--Judgment vacated in part and affirmed in part.

Inclusion in the official reports is not recommended.

SUNDBY, Judge (dissenting).

The issue presented by this case should be addressed by the Wisconsin Supreme Court. I would therefore certify this appeal. 1 The issue...

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